Pennsylvania's Right-to-Know Law Training 2022

The 2022 Annual Training for Pennsylvania's Right-to-Know Law provides valuable insights into the basics of the law, tips for agencies and requesters, and the importance of access, accountability, and good government. The training covers essential topics such as what constitutes a record and key terms related to the law. Questions can be submitted via the Team's Chat box, with CLEs unfortunately not available this year.

• Pennsylvania
• Right-to-Know Law
• Training
• Access
• Government

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1. The 2022 Annual Training will begin soon We are recording today s training and it will be posted on our website Use Team s Chat box to submit questions Please keep your questions short and direct The panelists will answer questions following their presentation Submitted questions are records under the RTKL Unfortunately, CLEs are not available this year

2. Liz Wagenseller, Executive Director 2022 Annual Training Pennsylvania s Right-to-Know Law November 15, 2022 https://openrecords.pa.gov openrecords@pa.gov @OpenRecordsPA (717) 346-9903

3. OOR Annual Training Topics Basics of the Right-to-Know Law Deputy Director Nathan Byerly Tips and Best Practices for Agencies Chief Counsel Kyle Applegate Tips and Best Practices for Requesters Executive Director Liz Wagenseller November 2022 OOR Annual Training 3

4. Basics of the Right-to-Know Law

5. Alphabet Soup OOR = Office of Open Records FD = Final Determination AORO = Agency Open Records Officer, also includes Open Records Officer, Right-to-Know Officer RTKL = Right-to-Know Law AO = Appeals Officer November 2022 OOR Annual Training 5

6. Access, Accountability, Good Government The purpose of Pennsylvania s Right-to-Know Law is: to promote access to government information in order to prohibit secrets, scrutinizes actions of local officials and make public officials accountable for their actions Every record of an Agency is presumed to be public. Agencies bear the burden of proving that a record is not public. An agency can withhold records; it is not required to do so under the RTKL. November 2022 OOR Annual Training 6

7. Is It a Record? Any information regardless of its physical form or character that documents a transaction or activity of an agencyAND is created, received, or retained pursuant to law OR in connection with a transaction, business or activity of an agency. November 2022 OOR Annual Training 7

8. Is It a Public Record? RTKL-Section 708(b): Do any exemptions apply, and if so, are we going to invoke them? Are there any federal or state statutes, or a judge s order, that make these records non-public ? (Section 306) Is the record protected by privilege? (Section 305) November 2022 OOR Annual Training 8

9. The RTKL Process: The Request Request made to Agency Open Records Officer Agency has 5 business days to respond + give reasons for withholding information Grant Deny 30 RTKL exemptions, court order, other laws Partially Grant/Deny Good faith 30-day extension November 2022 OOR Annual Training 9

10. The RTKL Process: The Request If no response within 5 business days Automatically denied (deemed denied) Cannot be changed An agency s late response does not reset the clock At the end of a 30-day extension, agency must grant or deny November 2022 OOR Annual Training 10

11. The RTKL Process: Appeal Appeal for local and Commonwealth agencies made to OOR Appeal for criminal investigative records in possession of local law enforcement agencies then appeal to that county District Attorney s AO Legislature, Judiciary, Office of Attorney General and several other offices have an AO within their agencies November 2022 OOR Annual Training 11

12. The RTKL Process: Mediation Either party may request mediation as an alternative to the traditional adversarial appeals process. Particularly effective where the Request is broad or covers a large number of records that are responsive to the Request, but which the Requester may not have intended to seek. If mediation is unsuccessful, the appeal is transferred to a different appeals officer and goes through the OOR appeal process. November 2022 OOR Annual Training 12

13. The RTKL Process: Appeal Requester has 15 OOR business days to appeal calculated from the mailing date of the Agency s response or date of the deemed denial (whichever was first). OOR will: Assign an Appeals Officer Send appeal packet that notifies parties of submission deadlines Review any legal arguments + evidence submitted Issue FD within 30 calendar days unless extended by Requester November 2022 OOR Annual Training 13

14. Final Determinations Are legally binding final orders. Available for review on OOR website, Lexis-Nexis, and Westlaw. November 2022 OOR Annual Training 14

15. The RTKL Process: Court Appeal If Parties disagree with FD, they have 30 calendar days to appeal to relevant court Local agency appeals are to be filed with Court of Common Pleas in the agency s county. Commonwealth agency appeals are to be filed with the Commonwealth Court. The OOR must be served notice of the appeal, but the OOR is not a party and should not be named in the caption. November 2022 OOR Annual Training 15

16. Payment Issues Agency is only required to provide the record in the current medium (Section 701) Agency cannot charge for electronic records. Inspection: Mutually convenient times. Must allow Requester to use their own equipment to make copies. Agency cannot charge for labor/redaction/legal review. Agency can only charge the actual cost/pass-through costs. November 2022 OOR Annual Training 16

17. More Payment Issues Mutual exchange, but payment is due first An Agency may require pre-payment if the fees are expected to exceed $100 Record Discard: Hold responsive records for 60 days before discard if not picked up. (Section 905) Agency can deny for non-payment of previous requests November 2022 OOR Annual Training 17

18. Agencies & RTKL: Tips and Best Practices

19. Respond to All Requests The consequences can be significant By not engaging, an agency may lose its right to protest the release of sensitive documents A court may issue steep fines for acting in bad faith May contribute to a reputation of opaqueness, raise suspicions May encourage more RTKL requests to be filed November 2022 OOR Annual Training 19

20. Take Pro-Active Measures to Mitigate Increased Volume of RTKL Requests Post commonly-requested records online Post RTKL responses & granted records online Ensure records are properly retained and accessible Consider informal process; little (or no) reason to require RTKL request for simple records Communicate with the requester to narrow down what they are seeking Consider granting access to some exempted records November 2022 OOR Annual Training 20

21. Post Records Online Easy Access to Certain Records Helps Everyone Post commonly-requested records online Direct website users to appropriate agency for records your agency doesn t possess Post records granted via RTKL requests November 2022 OOR Annual Training 21

22. Communicate with the Requester Good communication can prevent and solve many issues Requesters often submit broad requests to ensure they get all the records they want Understandable, but can be expensive & frustrating Requesters don t want surprise bills Agencies don t want unnecessary work Many requesters willing to discuss requests Cannot require requester to provide reason for request If agreement reached on revised request, put it in writing November 2022 OOR Annual Training 22

23. Consider Granting Some Exempt Records RTKL is not a confidentiality statute None of the exemptions MUST be claimed Again: Use common sense Records can be released outside of the RTKL An agency may exercise its discretion to make any otherwise exempt record accessible if: Disclosure is not prohibited by law or regulation (ex. FERPA); and The record is not protected by privilege; and The agency head determines that public interest favoring access outweighs any interest favoring withholding. November 2022 OOR Annual Training 23

24. Appoint the Right Employee as AORO The Agency Open Records Officer (AORO) is VITAL AORO receives RTKL training AORO receives all requests & is point of contact for requesters AORO contacts employees & contractors who may have records AORO tracks deadlines for responses and appeals AORO, when necessary, consults with agency head, solicitor Alternate AORO is available when AORO is out of office A resource account is used for RTKL requests and appeals November 2022 OOR Annual Training 24

25. Conduct Agency Business on Agency Accounts/Devices Records about agency business are subject to the RTKL, regardless of the ownership of the medium Access to personal emails, personal Facebook messages, personal texts may be subject to RTKL if they discuss agency business. Keep things simple by avoiding doing agency business on personal devices and accounts November 2022 OOR Annual Training 25

26. Consider Mediation Either party may request mediation as an alternative to the traditional adversarial appeals process. If mediation is unsuccessful, the appeal is transferred to a different appeals officer for issuance of a final determination. Particularly effective where the Request is broad or covers a large number of records that are responsive to the Request, but which the Requester may not have intended to seek. November 2022 OOR Annual Training 26

27. Cite Lack of Specificity With Caution Basing a Denial on Specificity Alone Specificity is a complicated, subjective basis for denial The OOR cannot rule on specificity first and then provide an opportunity to raise exemptions. All reasons for denial must be raised at the same time. If no other reason for denial is provided by school district and the OOR disagrees with specificity argument, access to records will likely be granted. May not be able to introduce new evidence or exemption in court appeal. OOR Annual Training November 2022 27

28. Requesting Records: Tips and Best Practices

29. Submit your RTKL Request to the Correct Agency Submit requests to the agency that has the record Rarely the OOR we receive > 900 misdirected requests every year Address requests to Agency Open Records Officer (AORO) Commonwealth agencies each have own: DEP, DCNR, DOC, DCED, etc. Some agencies have separate AOROs by bureau, dep t, etc. e.g., Philadelphia has approximately 40 AOROs Important to send request to the right AORO If not sure, say so: If this request is misdirected, please let me know so I can withdraw it and direct it to the proper AORO. November 2022 OOR Annual Training 29

30. Be As Specific As Possible In Request An agency can deny a request if it is deemed insufficiently specific Request should attempt to identify a transaction/activity of an agency, and NOT ask for an overly-broad collection of records Emails Mary Smith sent about May 17, 2022 city council meeting vs. All emails Mary Smith ever sent in the last four years Attempt to address three areas: Subject Matter:Identify transaction or activity of the agency (e.g., July 15 meeting about new park ) Scope: Identify discrete group of docs (e.g., type or recipient) Timeframe: Identify a finite period of time This is the most fluid factor failure to identify a finite timeframe will not automatically render a request overbroad & a short timeframe will not make an overbroad request specific Timeframe can be implied (e.g., the ongoing Pine Street repaving ) November 2022 OOR Annual Training 30

31. Track and Dates & Deadlines In Case You Need to Appeal Must state & local agency must respond in writing within 5 (agency) business days If no response received, request is deemed denied If an agency doesn t respond at all within five days, onus is on requester to know to appeal within 15 business days; no remedy if you fail to do so. Agency can extend timeline by 30 calendar days Must be done in writing within the initial 5 business days Any other extension must be agreed to by requester & in writing Missing a deadline can curtail all of your efforts; no remedy if appeal is untimely. November 2022 OOR Annual Training 31

32. Consider Engaging & Negotiating with Agency May be willing to work with you on deadlines, better understand your request and thus reduce timeline and copying costs Agencies cannot require you to disclose your motive in making the request, but they can ask questions in order to understand the specific records you are seeking November 2022 OOR Annual Training 32

33. RTKL Does Not Apply to Police Recordings Act 22 of 2017 covers police video & audio recordings Must request recording within 60 days of its creation Agency has 30 days to respond, may deny for various reasons Denials may be appealed within 30 days to court; $125 fee Law enforcement agencies & DAs have fairly broad discretion to release a recording (with or without a written request). More info on OOR website November 2022 OOR Annual Training 33

34. Other Request Tips Anticipate exemptions; avoid walking into one by carefully crafting request so that it is not dismissed with obvious exemption Seek records don t ask questions Be cautious in asking for lists Agency not required to create a list that doesn t exist (unless a database pull) Instead, ask for all responsive records will produce list that you are seeking Consider submitting multiple requests at once Might avoid getting all requests bogged down by one or two controversial ones Also helpful if request is time sensitive Learn about the database software used by the agency If possible, learn capabilities of program/database ask if unsure Terminology can be important use agency jargon if possible Create, export, compile, format, CSV, TXT, comma-delimited November 2022 OOR Annual Training 34

35. Appealing a RTKL Denial: Tips and Best Practices

36. Multiple Reasons to Consider Appealing a RTKL Response If agency denies access to some or all records requested If agency redacts portions of granted records If agency fails to respond to RTKL response by statutory deadline Ask agency to redact nonpublic portions of record rather than deny access to entire record If production of granted records is delayed by agency Fee issues November 2022 OOR Annual Training 36

37. Grant OOR Extensions Whenever Possible Some appeals are complicated and require more extensive research; 30 days may not be sufficient Heavy workload This may allow the establishment of a briefing schedule, allowing agency to respond to requester s arguments. A briefing schedule may also permit the requester to respond to the agency s arguments. November 2022 OOR Annual Training 37

38. Filing an Appeal is Simple and Free Requester only required to submit basic info, but may choose to provide brief with legal arguments and point to specific evidence Thousands of appeals are successfully appealed every year without the requester utilizing an attorney An organized requester who keeps careful track of all dates and deadlines is all that is needed If you have access to an attorney, can be helpful in more complicated situations or to reduce work for requester Three simple requirements to appeal Submit all required documents within 15 business days of agency denial/deemed denial Fill out one-page appeals form; not required to provide legal basis for appeal Provide all required documentation (listed on appeals form) November 2022 OOR Annual Training 38

39. If you want to become involved in appeal Try to consider what would help the appeals officer Refute each exemption raised by agency, ideally with specific court cases or previous OOR final determinations Point to specific evidence to demonstrate an agency s factual assertions may be incorrect Submit an affidavit if trying to utilize factual information to demonstrate an agency may be wrong If agency cites new or additional reasons for denial, ask for an opportunity to respond November 2022 OOR Annual Training 39

40. Three Options After the OOR s Final Determination If you believe the OOR made an error, can request Petition for Reconsideration within 15 days of FD mailing Cannot submit new evidence OOR responds within 30 days Agency or requester may appeal FD to court within 30 days of FD mailing; stays record request Local agency Court of Common Pleas State agency Commonwealth Court Submit a new RTKL request that is modified based on why first attempt was denied Different format, agency, or individuals named More specific November 2022 OOR Annual Training 40

41. Additional Questions? Today s training has been recorded and will be posted to our website. If we did not answer your questions today or you have more questions, contact us: Via website form: https://www.openrecords.pa.gov/ContactOOR.cfm, Via email: openrecords@pa.gov, or Via phone: 717-346-9903. Submitted questions are records under the RTKL. OOR website has resources for agencies & requesters https://www.openrecords.pa.gov/ November 2022 OOR Annual Training 41